Joel Hoja v. R., Tanga Crim. App. 2-D-6; 31/12/69, Georges C. J.

 

Joel Hoja v. R., Tanga Crim. App. 2-D-6; 31/12/69, Georges C. J.

The appellant was convicted of burglary contrary to section 294 (1) of the Penal Code and indecent assault on females contrary to action 135(1) of the Penal Code. The victim Eveline Kijangwe, lived in a house with six rooms. In the room next to her lived Rehema, a nurse employed by the Lushoto District Council. She knew the appellant. On 2^nd September he called on her to ask for lodging since he had nowhere to stay. She prepared a room for him and he slept there that night. On 4^th September about 2.00 a.m. she heard a loud knocking on the door of her neighbour Eveline. Later she heard Eveline voice shouting an alarm. She went to see what was happening and found the appellant in Eveline ‘s sitting room and Eveline complaining that her door had been broken into and she had been assaulted. Eveline’s evidence was that while she was sleeping she heard someone knocking on the door. The knocking was very violent and she began to shout. In spite of her shouts the knocking continued and she heard a voice shouting, “Why you, Rehema, have cheated me.” She then replied that she was not Rehema and that this was not Rehema’s room. The benging continued and then the door broke and the appellant entered the room, caught held of her in the veranda and said, “Although I have missed Rehema today are you and me”. He caught her by the hands and attempted to pull her into the bedroom, pressing her by the ribs to force her to release the grip on part of the house to which she was holding. As a result of her shouting Piasis and Rehema came to the scene. The appellant remained sitting in the sitting room. Later he went to her bed and lay down. The police found him there. When called upon at the trial the appellant gave no testimony.

            Held: (1) The magistrate was perfectly right when he pointed out “that the appellant must have been mistaken when he knocked on Eveline’s door, and that there must have been every likelihood that he must have thought that he was knocking on Rehema’s door. The offence of burglary consists of breaking and entering into premises with the intention of committing a felony therein. If the appellant

Did think that it was Eveline’s door, there was no reason to suppose that he intended to commit any felony in relation to Eveline. She was his host. She had allowed him sleeping accommodation on the previous night. At the lowest it seems to me that there must be some doubt as to whether the appellant had intended to commit any felony at the time he broke down the door. It would also of course be burglary if he had in fact committed a felony after he had entered the house. Again I am not at all satisfied that the evidence can support a charge of indecent assault. Eveline never complained of having been assaulted in any part of her body normally associated with sexual activity. There is no allegation that he touched her breasts or that he attempted to lift her clothing, or handle her familiarly. Her main complaint is that he pushed her in her ribs with the intention of forcing her to release some part of the building to which she was holding on. It is true that his conduct in inexplicable on the onus of proof is on the Republic and if there is any doubt it must go to the appellant. Once that is borne in mind I am satisfied that the conviction for burglary cannot be sustained, since the clear evidence of mistake on his part at least at the moment when he entered the room would, at the lowest, cause great doubt on the issue of intent to commit a felony. Accordingly that conviction is quashed …. There is also great doubt as to whether the assault in this case was an indecent assault. On the other hand simple assault has definitely been established. I would therefore set aside the conviction for indecent assault and substitute a conviction for common assault under section 240 of the Penal Code.” (2) “The trial magistrate discharged the appellant absolutely on the second count. This was an odd sentence indeed ….. Where there is an offence of burglary and an additional charge of having committed the felony which was alleged to have been the object of the breaking and entering, the punishment imposed in respect of that felony should be a proper punishment and should never be merely nominal even though it is a prison term made to run concurrently with the punishment imposed on the burglary charge. The assault in this case was inflicted in circumstances which could cause much terror. Assuming the appellant was mistaken when he first attempted to get into the house there would seem to be no reason why he should continue in attacking Eveline, when he must have known that he was mistaken in having entered the house. Taking into account the fact that he is a first offender I will impose a sentence of 6 months in respect of the substituted offence of common assault.”